Top Rackspace lawyer: “We’d love to get rid of software patents”

Hosting company says litigation is forcing it to get into the policy game.

"Once you reach a certain size, you become more of a target," Alan Schoenbaum told us in a recent interview. Schoenbaum is the general counsel of Rackspace, which achieved $1 billion in revenue for the first time last year. He said that patent litigation against the San Antonio company has "accelerated over the last two years."

In addition to facing its own lawsuits, Rackspace is increasingly seeing its clients sued as well. Last month, for example, a patent troll sued the source control company Github. The troll also named Rackspace in its lawsuit, apparently believing that merely hosting Github's servers is sufficient to make Rackspace liable for Github's alleged infringement. "No company is safe from patent trolls," Schoenbaum told us.

Such attacks have driven Rackspace to become an active participant in the patent reform debate. "We really just got our policy stuff going recently," he said. While the company hasn't yet hired a full-time policy staff, policy issues consume a growing share of Rackspace lawyers' time. And the firm has begun to retain lobbying firms to help it advocate patent reform in Washington.

"We'd love to get rid of software patents altogether," Schoenbaum told us. He cited Red Hat, which he described as "a very important supplier to Rackspace," as a major influence on Rackspace's views on patent reform. Red Hat and Rackspace regularly appear in court together defending the Linux kernel against attacks by patent holders. "Philosophically we're aligned" on patent issues, Schoenbaum said. Both companies, he said, are "concerned about the open source community."

"The patent troll doesn't have a lot to lose other than the lawyer's time and expense," Schoenbaum noted. "The idea behind the SHIELD Act is to level the playing field so the plaintiff has economic risk."

Schoenbaum expressed frustration with recent reform efforts in Congress, especially last year's America Invents Act. That legislation, he said, "did not contain many of the ideas that were directed at reducing patent troll litigation." For example, Rackspace supports limiting damages for patent infringement and streamlining the litigation process. But Schoenbaum said a coalition of universities, pharmaceutical companies, and plaintiffs' lawyers defeated reform proposals despite the support of the technology industry.

He described patent reform as "a matter of competitiveness. These are issues that our competitors don't face. They don't have patent trolls like we do in Europe."

Rackspace is relatively rare in its open opposition to patents on software. Many large firms have called for vaguely-defined patent reforms, but most only endorse more modest reform proposals such as the SHIELD Act. Until recently, Red Hat was virtually alone among large technology companies in explicitly advocating abolition, not just reform, of patents on software. Now, the fast-growing hosting company promises to be a key ally in the free software movement's fight against software patents.

43 Reader Comments

But Schoenbaum said a coalition of universities, pharmaceutical companies, and plaintiffs' lawyers defeated reform proposals despite the support of the technology industry.

Which is why they were aiming in the wrong direction to begin with. If you want to fix software patents, then fix them. That way, the only interested parties would be lawyers and maybe some universities.

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Now, the fast-growing hosting company promises to be a key ally in the free software movement's fight against software patents.

Define "key ally". Do you really believe that Rackspace's opposition to software patents is going to achieve anything? Until you can show me that Google, Microsoft, Apple, et. al. are on board, then it's little more than impotent posturing. They're the ones who can lobby Congress to make it happen.

Now, the fast-growing hosting company promises to be a key ally in the free software movement's fight against software patents.

Define "key ally". Do you really believe that Rackspace's opposition to software patents is going to achieve anything? Until you can show me that Google, Microsoft, Apple, et. al. are on board, then it's little more than impotent posturing. They're the ones who can lobby Congress to make it happen.

Well they had $1 billion in revenue last year. While that doesn't necessarily mean they have lots of money to throw around, they aren't small fry. They are lobbying in Washington, it says so in the article:

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And the firm has begun to retain lobbying firms to help it advocate patent reform in Washington.

Until they have more to lose than to gain from software patents, the likes of Microsoft, Apple, Google, etc. will never call for their abolition.

Hell, Apple just kicked Samsung square in the nuts with their patents, and are taking a run-up to try to do even more damage. Regardless of whether anyone believes their software patents are valid (and whether anyone believes the verdict will withstand the inevitable appeal) Apple are making clear headway in competition via the courts. So what if they get dinged for a few million here or there from trolls?

The patent wars are definitely underway; we'll see who (if anyone) is left standing at the end, or whether some level of sanity will be imposed before the only businesses left are the lawyers.

NPEs are specifically set up to have no assets other than the patent being sued over. I don't know how they expect to make the penniless corporation with only a worthless (or invalidated) patent cover for the costs they just forced their target to incur.

And I don't expect any action coming from Apple or Microsoft except to oppose reform, since they benefit greatly from the laws as they are now. They might get stung by the occasional patent troll, but it's worth far more to them to be able to attack and harass competitors with massive portfolios, and scare people with nasty things like "you need indemnification" to discourage adoption of competing platforms.

Until they have more to lose than to gain from software patents, the likes of Microsoft, Apple, Google, etc. will never call for their abolition.

Hell, Apple just kicked Samsung square in the nuts with their patents, and are taking a run-up to try to do even more damage. Regardless of whether anyone believes their software patents are valid (and whether anyone believes the verdict will withstand the inevitable appeal) Apple are making clear headway in competition via the courts. So what if they get dinged for a few million here or there from trolls?

The patent wars have begun; we'll see who's left standing at the end.

They might not call for the abolition, but they are unlikely to openly oppose reform. There is still the matter of public perception.

So while they won't help, they certainly won't overtly obstruct anything and that is all that is needed.

The SHIELD bill is pretty much Anti-SLAPP for patents, and that will help a lot for the people that this is affecting. Of course the big players don't care, they have the funds to deal with it, the smaller devs that can barely afford server costs, let alone legal fees are the ones that suffer.

And that is the entire point. Many trolls just push for a settlement, with the victims caving because just the legal fees would kill them, let alone losing, so fighting is a lose-lose for them. The small guys are the people we are trying to protect here, the Samsungs, Googles and Apples of the world can look after themselves, but when app developers are being sued for using Apple's in-app purchasing system? That is the problem.

NPEs are specifically set up to have no assets other than the patent being sued over. I don't know how they expect to make the penniless corporation with only a worthless (or invalidated) patent cover for the costs they just forced their target to incur.

Well they had $1 billion in revenue last year. While that doesn't necessarily mean they have lots of money to throw around, they aren't small fry. They are lobbying in Washington, it says so in the article:

Yes, and Red Hat is also a $1B company.

Oracle or Google make $1B in under 2 weeks. Microsoft makes a billion in about a week. Apple makes it in 2-3 days.

So compared to them both RS and RH are the change you find when you vacuum out the couch.

I'm a huge supporter of RH, and I like RS too. I think software and business method patents need to be tossed out entirely without affecting the rest of the patent landscape. But until you get one of these really huge companies to back such a proposal it's just not going to happen. Instead we'll get half assed bills and death by a thousand paper cuts.

Now, the fast-growing hosting company promises to be a key ally in the free software movement's fight against software patents.

Define "key ally". Do you really believe that Rackspace's opposition to software patents is going to achieve anything? Until you can show me that Google, Microsoft, Apple, et. al. are on board, then it's little more than impotent posturing. They're the ones who can lobby Congress to make it happen.

Google, Microsoft and Apple have all publicly spoken against patents multiple times over the years.

Everything they've said has been pretty tame, but you can't expect the CEO of a major corporation to get involved any any contentious issue.

NPEs are specifically set up to have no assets other than the patent being sued over. I don't know how they expect to make the penniless corporation with only a worthless (or invalidated) patent cover for the costs they just forced their target to incur.

Easy. Make the investors in the NPE pay the fine. Or even better, make their legal representatives pay the fine.

I'm happy to give the board of directors at a patent troll the benefit of the doubt, if they claim to think their worthless/invalidated patent was perfectly valid. But their legal team has no excuse, if a patent is invalid they would have known that before going to court.

microlith wrote:

And I don't expect any action coming from Apple or Microsoft except to oppose reform, since they benefit greatly from the laws as they are now. They might get stung by the occasional patent troll, but it's worth far more to them to be able to attack and harass competitors with massive portfolios, and scare people with nasty things like "you need indemnification" to discourage adoption of competing platforms.

They "get stung by the occasional patent troll"? I think you grossly underestimate how often they have to defend themselves in court. It's not an occasional thing for those guys, it happens every single week.

The problem with having a debate is that the loudest voices will be for the most extreme positions. The best way can for years be drowned out in the melee and that is exactly what the patent trolls want. The idea that you can patent anything that you can do in real life if it can also be done online is bizare and leads to so called companys that produce nothing but lawsuits and the government just taxes them just the same as a company that makes or at least sells something. This legislation review is getting ever more desperate but the vested interests the patent trolls and rights holders will not let it happen.

The Apples, Googles, Microsofts, IBMs, Oracles of the world would like the regime to remain as it is.

They have poured a heap of money into amassing their patent portfolios. They don't want to see that investment wiped out. Sure the trolls may sting occasionally, but the important thing is that it keeps the smaller, more nimble, more innovative competitors from entering their markets.

I'm wondering if a more successful strategy is to go after the NPE with law that says that if you can't show a good faith effort to produce the subject of the patent, then you can't sue for infringement. If you weren't building product, or ever intend trying to, there is no damage. But then again, I'm sure there would be enough loopholes that it wouldn't work.

NPEs are specifically set up to have no assets other than the patent being sued over. I don't know how they expect to make the penniless corporation with only a worthless (or invalidated) patent cover for the costs they just forced their target to incur.

It would be simple enough to set up a bonding process for such liability shielded entities. Can't post the bond? Can't sue.

I'm happy to give the board of directors at a patent troll the benefit of the doubt, if they claim to think their worthless/invalidated patent was perfectly valid. But their legal team has no excuse, if a patent is invalid they would have known that before going to court.

On what basis can you make that claim? I think that's entirely unreasonable, you'd have to prove that they knew it was invalid and went anyway. In effect, you'd have to read their mind.

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They "get stung by the occasional patent troll"? I think you grossly underestimate how often they have to defend themselves in court. It's not an occasional thing for those guys, it happens every single week.

Yeah, minor, trivial dribblings. Real cases like I4I only happen once every very many years and is easily recouped by remaining dominant. And what's a great way to remain dominant when you're stalled out or attempt dominance when you can't otherwise compete? By attacking your competitors with legal instruments to tie them up and hinder their products and spread FUD. Anything that would successfully defuse the patent trolling we have now would necessarily hinder their ability to do the same.

Gibborim wrote:

It would be simple enough to set up a bonding process for such liability shielded entities. Can't post the bond? Can't sue.

That would be pretty blatantly be "putting a price on justice" don't you think? I could see that being opposed by way, way more than just pro-patent entities.

I'm wondering if a more successful strategy is to go after the NPE with law that says that if you can't show a good faith effort to produce the subject of the patent, then you can't sue for infringement. If you weren't building product, or ever intend trying to, there is no damage. But then again, I'm sure there would be enough loopholes that it wouldn't work.

The big problem is that this would leave major research entities like universities out in the cold.

NPEs are specifically set up to have no assets other than the patent being sued over. I don't know how they expect to make the penniless corporation with only a worthless (or invalidated) patent cover for the costs they just forced their target to incur.

It would be simple enough to set up a bonding process for such liability shielded entities. Can't post the bond? Can't sue.

Then the little guys won't ever be able to play: the table will always be high-stakes. And this is a problem with all proposals that losers must pay winners' costs: a big defendant can deliberately rack up the costs as an intimidatory tactic ("in our pre-trial phase we intend to use 100 top lawyers being very, very thorough..."), which is among the reasons why awarding costs is generally at the judge's discretion.

1. The whole idea behind patents is to foster invention. In my opinion, this means protecting the little guy. Perhaps reform could include some provision for this. I. E. If your company is bigger than the infringing company, you can't sue over patents.

2. Companies that hold patents but do not use them are stifling invention.

3. Software patents are also a strange concept. Many people may have an idea... The idea may also be well established, while nobody has yet managed to implement it in code. How can successfully overcoming the obstacles to successful implementation of an idea result in you infringing on a patent?

I'm happy to give the board of directors at a patent troll the benefit of the doubt, if they claim to think their worthless/invalidated patent was perfectly valid. But their legal team has no excuse, if a patent is invalid they would have known that before going to court.

On what basis can you make that claim? I think that's entirely unreasonable, you'd have to prove that they knew it was invalid and went anyway. In effect, you'd have to read their mind.

On the basis that you are not legally allowed to practice law unless you are well educated in the law.

If you have studied law at university and passed all the relevant tests and are working for a law firm with decades of experience, then you try to enforce a blatantly invalid patent, then I think you should be punished.

Most software patents are what ANY reasonably intelligent programmer would have created even if they were placed in a locked building with no access to the outside world and had no exposure to other solutions. They're just that obvious.

One of the most chilling patents is Gemstar's scheduling patent which describes displaying a list of TV channels, times, and TV shows in a "schedule grid" pattern on a television screen. This is what ANY reasonable person would have thought of when thinking of how to display this data. It's like patenting window squeegies for your car windshield. There's really only one shape it can have and anyone would have come up with the same thing.

The test for a software patent should be, is this something that any reasonable person could have come up with on their own?

Don't laugh. The legal definition of what constitutes pornography is up to community standards. The legal challenge for copyright infringement is whether a reasonable person would consider it a copy or derivative work. "Community standards" and what's "reasonable" are canonized legal concepts and could just as easily apply to patents.

I also think that the fact that a company can file a patent yet make NO attempt to develop, produce, market, and release a product that uses said patent should be a valid Defense against patent trolls. The purpose of patents is to encourage invention. If you patent something and then just sit on it, you should lose that patent after some period of time. It's one thing if the technology is not available to realize that patent. It's quite another if you are just a storefront in Poughkeepsie that has never designed, developed, or released a product.

The vast majority of software patents should never have been granted because they are the obvious solutions to software design problems.

NPEs are specifically set up to have no assets other than the patent being sued over. I don't know how they expect to make the penniless corporation with only a worthless (or invalidated) patent cover for the costs they just forced their target to incur.

It would be simple enough to set up a bonding process for such liability shielded entities. Can't post the bond? Can't sue.

Then the little guys won't ever be able to play: the table will always be high-stakes. And this is a problem with all proposals that losers must pay winners' costs: a big defendant can deliberately rack up the costs as an intimidatory tactic ("in our pre-trial phase we intend to use 100 top lawyers being very, very thorough..."), which is among the reasons why awarding costs is generally at the judge's discretion.

Easy, have it so that only NPEs need to post a bond, and specifically exclude universities from being considered as NPEs. That way, the 'little guys' (small, practising entities) won't be adversely affected.

NPEs are specifically set up to have no assets other than the patent being sued over. I don't know how they expect to make the penniless corporation with only a worthless (or invalidated) patent cover for the costs they just forced their target to incur.

And I don't expect any action coming from Apple or Microsoft except to oppose reform, since they benefit greatly from the laws as they are now. They might get stung by the occasional patent troll, but it's worth far more to them to be able to attack and harass competitors with massive portfolios, and scare people with nasty things like "you need indemnification" to discourage adoption of competing platforms.

A judge can order a transfer of assets -- e.g. the patent -- in certain circumstances. Even if the NPE is prepared to file for bankruptcy, the patents themselves aren't protected. Additionally, the judge can direct the court to determine where the financing for the NPE came from and pursue them.

But my understanding of the motivation behind the SHIELD Act is that it's supposed to de-incentivize NPE behavior. It may.

The test for a software patent should be, is this something that any reasonable person could have come up with on their own?

This is already a requirement for a patent.

The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of technology related to the invention.

One of the problems is people granting the patents are not experts and cannot accurately asses this requirement. The patent office has decided to leave it up to the courts to decide if it is invalid and just grants the patent.

I went to San Antonio and took Rack Space's Open Stack training course this Spring. I have to say I was impressed with these guys. They are the real deal, their workplace is amazing it's an 11 million cubic sq feet of office space (not all used) and they have a slide going from the 2nd floor to the first. It looked like almost everyone working there was genuinely happy. Anyways, I had a good time there and they seemed to have some pretty good ideals and were working pretty hard on Open Stack which I personally believe is a great technology for LaaS. I hope more firms like this join in and we can start getting some real momentum going for "fixing" our patent infrastructure. Now excuse me while I go finish setting up a PoC Open Stack cluster.

I'm happy to give the board of directors at a patent troll the benefit of the doubt, if they claim to think their worthless/invalidated patent was perfectly valid. But their legal team has no excuse, if a patent is invalid they would have known that before going to court.

On what basis can you make that claim? I think that's entirely unreasonable, you'd have to prove that they knew it was invalid and went anyway. In effect, you'd have to read their mind.

On the basis that you are not legally allowed to practice law unless you are well educated in the law.

If you have studied law at university and passed all the relevant tests and are working for a law firm with decades of experience, then you try to enforce a blatantly invalid patent, then I think you should be punished.

Yeah, that's just not how the real world works. You don't go to university to learn how the judge or jury is going to rule in every case you handle in your career.

Blatant obvious things very rarely get to court, and there are already ways of sanctioning lawyers for taking obvious things to court. It's the debatable things that get to court, and half of the parties turn out to be wrong in every case.

Most software patents are what ANY reasonably intelligent programmer would have created even if they were placed in a locked building with no access to the outside world and had no exposure to other solutions. They're just that obvious.

The test for a software patent should be, is this something that any reasonable person could have come up with on their own?

The vast majority of software patents should never have been granted because they are the obvious solutions to software design problems.

"The idea that I can be presented with a problem, set out to logically solve it with the tools at hand, and wind up with a program that could not be legally used because someone else followed the same logical steps some years ago and filed for a patent on it is horrifying." -- John Carmack (id Software)

Most software patents are what ANY reasonably intelligent programmer would have created even if they were placed in a locked building with no access to the outside world and had no exposure to other solutions. They're just that obvious.

The test for a software patent should be, is this something that any reasonable person could have come up with on their own?

The vast majority of software patents should never have been granted because they are the obvious solutions to software design problems.

"The idea that I can be presented with a problem, set out to logically solve it with the tools at hand, and wind up with a program that could not be legally used because someone else followed the same logical steps some years ago and filed for a patent on it is horrifying." -- John Carmack (id Software)

What that statement made before or after he figured out the Z-fighting fix independently of the existing implementation?

What is particularly mind-boggling about the difficulty of reform is that the problem with the patent system isn't really in the definition of what is patentable, it is in the *practices* of the US patent office, which has been completely corrupted by the fact that they retain patent filing fees as their own private budget, giving them a huge incentive to ignore the actual law, which requires that a patent be UNOBVIOUS. They've essentially (and in fact literally, given that they have actually admitted that they depend on the courts to weed out bad patents after the fact, at enormous cost to society) abdicated their responsibility to determine that, thus things like one-click-patents, rounded rectangles, overlaying data on a map, and the rest of the huge flood of clearly obvious patents.

We have the law we need to stop the problems NOW, it just needs to be enforced and the patent office completely restructured and stripped of the fee revenue, perhaps with a fine for submitting frivolously obvious patents.

1. The whole idea behind patents is to foster invention. In my opinion, this means protecting the little guy. Perhaps reform could include some provision for this. I. E. If your company is bigger than the infringing company, you can't sue over patents.

I think your ideology is going against itself. If the idea behind patents is to foster invention, then it means they should protect the inventor. The size of the company who invented it should be irrelevant. Besides, how would you propose we judge the size of the company for this particular situation? Market cap seems the most common way nowadays. What happens if a company is worth 500 million and the suing one is worth 480 but investors see they might have a good case if they file for patent infringement so its stock goes up and the next day it's worth 520? Can't file now? What if they aren't public companies so we don't even know what their market cap is?

Maybe you are looking at only the top 5 big guys and then a small company of 2 or 3 people where the difference is gigantic, but there's a lot of ground in between. Saying that a company worth 15 million can't sue one worth 14.5 million for patent infringement just doesn't seem helpful.

Someone should mention that ARM doesn't produce anything, they just license their stuff. So just singling out NPEs is not a good strategy.

My take: the very essence of inventing is taking a good idea and extending it to make it better. Any reform should allow a small indie dev to do that.

I really don't see ARM Holdings as an NPE. Sure, they don't manufacture any physical products themselves, but they do a lot of R&D. They don't just sit on patents, while looking for someone to sue.

Yeah, they're not. NPEs don't use their patents and licensing is a (very common) way of using IP.

The issue is, in writing and in legal terms, how do you differentiate between the two? They both produce nothing tangible themselves, they both seek licensing arrangements with firms that do. The only real difference is in the waiting and the reasonability of the terms for licensing. The only logical solution is a statute of limitations for the time between the patent being granted and the allegedly infringing product being released. But how do you tell whether it was a calculated wait until it was profitable to sue (a troll behaviour) and simply not noticing the potential infringement? The fact is, you can't, at least not plausibly.

The real solution is to declare software as non-statutory (which it already is, despite lower courts ignoring the law and precedent). Nothing a computer does can't be done by a person, it's all math and ideas, just done very quickly; both math and ideas are non-statutory, and so too is software.

It should be recognized that just as some companies have vested interests in the status quo others such as Red Hat and Rackspace have an interest in disrupting it.

But the world needs both.

So it might be the best path to reform and modernize the system to limit scope, create different categories and kick-out the trolls.

That sounds like a politic-speak cop-out. What does the fact that one is for or against the status quo matter? What matters is the position, whether it's the current or the urge for change, being beneficial to competition, progress, and the people.

Likewise in the empty statement category, you suggest different categories, but as I put forward, how do you define them in clear, written language, without obviously loopholes or catching the legitimate ones in your dragnet for trolls?

We need patent office reforms. If you are reviewing a patent you should be required to understand the market that the patent is for. For IT that means you better have a degree in Comp Sci or equivalent along with experience writing software. If you don't the patent will look like Greek to you and you'll have no idea when someone is trolling you.

Other than that, we really need to tighten up the definition of "obvious" in patent law and enforce the prior art requirement in courts.

The test for a software patent should be, is this something that any reasonable person could have come up with on their own?

This is already a requirement for a patent.

[...]

One of the problems is people granting the patents are not experts and cannot accurately asses this requirement. The patent office has decided to leave it up to the courts to decide if it is invalid and just grants the patent.

Which would work if the court of appeals wasn't so patent-friendly. Or if we didn't have courts like the East Texan one that almost invariably sides with the patent holder, even when there is clear prior art. The law as it stands is technically fine, but it isn't being applied properly due to some rather ridiculous decisions amongst different courts.

On a slightly different note, I think that one requirement, or invalidation criteria or whatever, should look at the feasibility of the patented idea before it's filing. The problem with "obvious" is that it can be countered with the argument "of course it looks obvious now!", which is very difficult to argue against. However, if your patent is for a product that it only possible because of recent advancements, then that should count against you. That is too broad of course, and I'm sure a lawyer would be able to write something better, but the idea is to stop the "on the internet" or "using a computer" type patents. If you are essentially patenting a previous idea with new tech, then that should work against you.

An example: (NB: I'm not sure if this is real or not, but either way, I'm not trying to make a statement about any specific company)A patent for "two-fingered swipe to move between application screens" would be able to be fought using this amendment. The lack of prior art, and the aforementioned difficultly with "obvious" makes it difficult to invalidate under current law. The amendment would allow you to state that the idea of using a two-fingered gesture is solely dependent on a touch interface capable of tracking multiple points, and then show a reasonable sequence of steps that allow you to go from problem (moving between application screens) to solution (using a two-fingered gesture). As long as there are a relatively few steps, and there are no leaps of innovation, then the patent is invalid. For the example, You start with the problem, moving between application screens, then suggest a single-finger, but that is already used for scrolling, so you suggest using a second finger, since the touch interface is capable of tracking the extra point. The argument that there are other ways of moving between screens is irrelevant if the "patented" method is only novel because the technology now makes it possible.

I'm not suggesting that this be a complete criteria for invalidation or approval, in fact it should be a boost for the invalidation by obviousness criteria. While you may be able to make an argument similar to the one above now, it has little solid legal ground to stand on.

Of course, I am not a lawyer, so I might be (probably am) missing something, or misunderstanding something. I also don't expect my arguments to be watertight. Feedback is welcome.

The test for a software patent should be, is this something that any reasonable person could have come up with on their own?

This is already a requirement for a patent.

[...]

One of the problems is people granting the patents are not experts and cannot accurately asses this requirement. The patent office has decided to leave it up to the courts to decide if it is invalid and just grants the patent.

Which would work if the court of appeals wasn't so patent-friendly. Or if we didn't have courts like the East Texan one that almost invariably sides with the patent holder, even when there is clear prior art. The law as it stands is technically fine, but it isn't being applied properly due to some rather ridiculous decisions amongst different courts.

On a slightly different note, I think that one requirement, or invalidation criteria or whatever, should look at the feasibility of the patented idea before it's filing. The problem with "obvious" is that it can be countered with the argument "of course it looks obvious now!", which is very difficult to argue against. However, if your patent is for a product that it only possible because of recent advancements, then that should count against you. That is too broad of course, and I'm sure a lawyer would be able to write something better, but the idea is to stop the "on the internet" or "using a computer" type patents. If you are essentially patenting a previous idea with new tech, then that should work against you.

An example: (NB: I'm not sure if this is real or not, but either way, I'm not trying to make a statement about any specific company)A patent for "two-fingered swipe to move between application screens" would be able to be fought using this amendment. The lack of prior art, and the aforementioned difficultly with "obvious" makes it difficult to invalidate under current law. The amendment would allow you to state that the idea of using a two-fingered gesture is solely dependent on a touch interface capable of tracking multiple points, and then show a reasonable sequence of steps that allow you to go from problem (moving between application screens) to solution (using a two-fingered gesture). As long as there are a relatively few steps, and there are no leaps of innovation, then the patent is invalid. For the example, You start with the problem, moving between application screens, then suggest a single-finger, but that is already used for scrolling, so you suggest using a second finger, since the touch interface is capable of tracking the extra point. The argument that there are other ways of moving between screens is irrelevant if the "patented" method is only novel because the technology now makes it possible.

I'm not suggesting that this be a complete criteria for invalidation or approval, in fact it should be a boost for the invalidation by obviousness criteria. While you may be able to make an argument similar to the one above now, it has little solid legal ground to stand on.

Of course, I am not a lawyer, so I might be (probably am) missing something, or misunderstanding something. I also don't expect my arguments to be watertight. Feedback is welcome.

That's the thing, the definition of "obvious" is reasonably well-defined by what someone "skilled in the art" would do to arrive at the solution to a given problem. When it comes to software the answer is nearly always that it is obvious. Provide a problem and the procedures to address it are invariably obvious to someone skilled (just take that multi-part text message patent for example; even if we didn't have spanned archives for decades, the concept itself is obvious, as is the implementation).

None of that matters, though, since software is nothing but ideas and math, neither of which are statutory subject matter eligible for patent protection. As you said, the issue isn't so much the law in this regard as it is the courts ignoring the law and precedent so as to do exactly the opposite of what is required of them. The only need to change the law as it applies to patents would be to clearly and unquestionably declare software ineligible for protection (even though it already is declared ineligible, right where math is declared ineligible).

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.